When Should Non-Durational Maintenance Be Awarded

Since
the passage of the equitable distribution law on July 19, 1980 which set forth
new standards for the award of maintenance, the courts have grappled with the
issue of whether to award fixed or life time maintenance to a needy spouse. More apt, would be the phrase “non-durational
maintenance”.

Fixed vs Non-Durational Time Frame

No
matter what term is used by the court to discuss such award and despite the
statute, it is clear that many jurists are having difficulties with
articulating the proper basis for deciding whether to fix maintenance for a
specified term of years, or to award such maintenance until the death or
remarriage of a spouse. Whether one method
is fairer than the other remains for you to decide.

Recent Decisions

Two
recent cases, one a lower court case in Nassau County, J.S. v. J.S.,
(NYLJ April 4, 2008 at 29, col 3) decided by Justice Anthony J. Falanga, and an
Appellate Division, Second Department case, DiBlasi v. DiBlasi, ___
A.D.3d ___ (2d Dept. 2008), expressed similar, but not identical views in
awarding maintenance for a fixed term.
Both decisions were reached after considering varying facts and
circumstances of the parties. DiBlasi awarded a 43 year old wife with 5 children
and no recent work experience, maintenance for 5 years, while in J.S., a
59 year wife without minor children and with no recent work experience,
received maintenance for 11 years. In
reading these cases, I recalled once again the classic lines in George Orwell’s
Animal Farm that all animals are equal, but some animals are more equal than
others.

Accordingly,
it will prove fruitful to examine in detail both decisions to determine the
impact the award will have, not only to the recipient spouse, but the paying
spouse as well...and whether a non-durational award would have been a better
option.

Examination of Cases

Both
husbands worked in auto dealerships, Mr.
DiBlasi was an owner and Mr. J.S., an employee. In J.S. v. J.S. at the time the
action for divorce was commenced, the parties had been married for almost 38
years. Both were 59 years old. They had three emancipated children who were
all presently self-supporting. The wife
argued that she should be awarded non-durational maintenance because she was
totally disabled and could not engage in gainful employment because of a
deteriorating health condition which included allegations that she was a cancer
survivor, was beset with periods of clinical depression, chronic fatigue
syndrome, shingles, sciatic, irritable bowel syndrome, colitis,
gastroesophageal reflux disease as well as a spinal disc herniation. Unfortunately, the wife offered no medical
testimony to substantiate these alleged medical conditions. At the time of trial, she was unemployed for
the past 4 years and received social
security disability benefits of about $700 a month as well as Medicare
coverage. By contrast, the husband was a
salesman of Jaguar automobiles and in the past had earned income between
approximately $280,000 in 2000 to about $100,000 in 2006, he having changed
jobs on several occasions during the past three years because his prior
employer, a Jaguar dealership in
Brooklyn, went out of business.

Apart
from the marital residence, the other marital assets were already virtually
exhausted. The marital residence was
worth approximately $800,000. Based on
these factual predicates, Justice Falanga, remarking that as a matter of first
impression “a court must consider ... the perspective financial circumstances
and work life expectancy of the payor spouse” proceeded to fashion an award he
felt to be fair to both litigants.
Whether his pronouncement that such issue was one of first impression
was accurate, appears to be problematic.
He went on to reflect that an award of non-durational maintenance may
require a paying spouse in his or her nineties and older to continue to support
a dependent spouse in his or her nineties and older.

Inadvertent Consequence of Decision

In
holding that it would be unfair to the paying spouse to have maintenance fixed
without duration, the court may have inadvertently created a burden to the
elderly paying spouse, by directing that the 59 year old husband pay
maintenance until his 70th birthday or 11 years following the date of the
divorce judgment. This observation is
made because it if felt that when the husband ceases work at a normal
retirement age of 65, his application for a modification would be more
favorably received, then if he makes such application at age 70, where the
court already decided that he should work till such age. To be successful on a modification
application, new facts must be raised. A
court hearing the application might rightfully conclude the issue was already heard
and decided in the original divorce action.

In
making such award, Judge Falanga, also noted that the receiving spouse, the
wife, will have to engage in at least part time employment through her 70th
birthday in order to sustain herself,
despite her alleged maladies, the judge finding that she was incapable of being
self-supporting, and was receiving disability payments. It is reasonable to assume that the marital
residence would be shortly sold for perhaps a minimum of $750,000 with each
party to obtain $375,000. At 5%
interest, that would return
approximately $19,000 per year to each spouse.

Under all of these circumstances, we
question the court’s decision to impute income to the wife of $20,800 a
year especially since she testified and the court found she was a high school
graduate with no business skills, her
historic earnings were modest, she could not return to work and had no
employment income for the past 4 years.
In awarding maintenance of $3,000 a month to the wife for 11 years, she may receive more income than her
husband if she returns to work, or if the husband’s income dramatically drops
during the next 10 years. There was no
further explanation of how the court imputed these monies to the wife. Imputation of $110,000 a year of income to
the husband was at least based upon his past historic employment in the sale of
Jaguar automobiles, but did not reflect the trend of his reduced earnings in
the most recent years.